Amicus Curiae Brief — American Foreign Service Assn. v. Garfinkel

No. 87-2127

In the Supreme Court of the Wnited States

OcToBER TERM, 1988

AMERICAN FOREIGN SERVICE ASSOCIATION, ET AL.,

APPELLANTS

v.

STEVEN GARFINKEL, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE OUT OF TIME

AND BRIEF OF THE UNITED STATES SENATE AS AMICUS CURIAE

MICHAEL DAVIDSON,

(Counsel of Record)

Senate Legal Counsel,

KEN U. BENJAMIN, JR.,

MORGAN J. FRANKEL,

Assistant Senate Legal Counsel,

642 Hart Senate Office Building,

Washington, D.C. 20510.

(202) 224-4435

FEBRUARY 1989.

In the Supreme Court of the United States

OcTOBER TERM, 1988

No. 87-2127

AMERICAN FOREIGN SERVICE ASSOCIATION, ET AL.,

APPELLANTS

V.

STEVEN GARFINKEL, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

MOTION OF THE UNITED STATES SENATE FOR LEAVE TO FILE

BRIEF AMICUS CURIAE OUT OF TIME

For the following reasons, the United States Senate re-

spectfully moves for leave to file the attached brief

amicus curiae.

The Senate may direct its Legal Counsel to appear as

amicus curiae in its name “in any court of the United

States ... in which the powers and responsibilities of

Congress under the Constitution of the United States are

placed in issue.” 2 U.S.C. § 288e(a) (1982). Appearing

under this authority, the Senate has previously defended

in this Court acts of Congress whose constitutionality has

been challenged by the executive branch. E.g., Morrison

v. Olson, 108 S.Ct. 2597 (1988). In this appeal, the execu-

tive branch, depending on how issues of mootness, ripe-

ness, and statutory interpretation are resolved, has ques-

tioned the constitutionality of an act of Congress.

Permission for the Senate to appear is of right and may

be denied only for untimeliness. 2 U.S.C. § 288/(a). The

brief for appellants was filed on December 29, 1988. The

(1)

2

brief for appellees is due to be filed by February 16, 1989.

Under Rule 36.2 of this Court the brief of an amicus

curiae shall be filed “within the time allowed for the

filing of the brief of the party supported and if in support

of neither party, within the time allowed for filing appel-

lant’s or petitioner’s brief.” The appellants are asking for

reversal of the district court’s judgment, while the appel-

lees have moved to affirm that judgment. The brief which

the Senate is seeking leave to file suggests to the Court

that the appropriate disposition of this case is to vacate

the judgment as moot in part and as unripe in part.

Under the Court’s rules our brief should have been filed

by December 29, 1988, as it supports neither the disposi-

tion sought by the appellants nor the disposition request-

ed by the appellees in their motion to affirm.

By law the Senate must agree to a resolution to author-

ize its Legal Counsel to appear in a case in the name of

the Senate. 2 U.S.C. § 288b(c) (1982) (“The Counsel shall

intervene or appear as amicus curiae . . . only when di-

rected to do so by a resolution adopted by the

Senate. .. .””) The 100th Congress had already adjourned

sine die when this Court noted probable jurisdiction on

October 31, 1988. The brief for appellants was filed during

the adjournment sine die. The 10lst Congress convened

on January 3, 1989. After swearing in new members,

electing a President pro tempore, and undertaking other

purely organizational activities on January 3, and joining

the House of Representatives for the counting of the elec-

toral ballots on January 4, the Senate adjourned until

January 25, 1989. The resolution to authorize the Sen-

ate’s appearance in this appeal, S. Res. 42, 101st Cong.,

lst Sess., 135 Cong. Rec. S1161-62 (daily ed. Feb. 2, 1989)

(text of resolution and statement of Sen. Mitchell), was

acted on during the Senate’s first full week of meetings

in the 101st Congress.

The legislative calendar has been only one consider-

ation. The principal factor governing the timing of this

brief has been the need to develop a position on the issues

3

involved that accounts for the views of interested mem-

bers of the Senate. Until that occurred, we could not

present to this Court, as we are able now to do, a brief on

behalf of the United States Senate. We have advised

counsel for the parties in advance of the filing of this

motion about the arguments that the Senate proposes to

offer to the Court. Neither the appellants nor the appel-

lees oppose the grant of our motion for leave to file.

Both the constitutional issues in this case, and the

question of the need to decide them, are of considerable

importance to the Senate. In the special circumstances

described above, we request the opportunity to file the at-

tached brief at this time.

Respectfully submitted,

MICHAEL DAVIDSON,

Senate Legal Counsel,

KEN U. BENJéMIN, Jr.,

MorGAN J. FRANKEL,

Assistant Senate Legal Counsel.

FEBRUARY 1989.

; :

ut pe Tih

TABLE OF CONTENTS

Interest of the United States Senate ....................0ccccccceeeeeees

Statutory Provisions Involved...................c:ccccsececseeeeeseceseeeeeees

Ne I oii siicesiiniainsenceiisticincsapnenitatnabiseminninnitinants

Argument:

The Judgment of the District Court Should Be Va-

cated Because There Is No Present Case Or Con-

CIEE ccccescscsesansnsersecnanasszsssennenensnsssbogseasenmmentsmseusmmmesennense

1. Congress Enacted Section 630 to Respond to

the Executive’s Use in Nondisclosure Agree-

ments of the Term “Classifiable’’ .....................

2. Elimination of “Classifiable’ From the Form

Agreements Moots the Controversy About

Ce iiaiiinnniaeatinssastencncinssinaddonsintibbiteainmianndansnes

3. No Dispute About Any Other Part of Section

630 Is Ripe for Review ..................:cccssecceeseeeeeeees

a. Potential Disagreements Over the

Knowledge Requirement in Subsec-

tion 1 Do Not Present a Ripe Contro-

NUT cissincneneplidiidianibicidadiiibiainiaiiibeimemtinigsibits

b. Neither Is the Potential Issue Under

Subsection 3, About Prior Authoriza-

tion for Disclosures to Congress, Ripe

BP TID ss/iducciadeenatnieensinaibiianpamiaiesieaee

4. Vacating the Judgment Will Also Serve to

Avoid Involving the Court in the Resolution

of Open Political Issues Between the Repre-

I iain

is cicicasiansianiacsbemeiahaihanaitieameiiiadaniaaaiaia cet init ae li ass aia

TABLE OF AUTHORITIES

Cases:

Baker v. Carr, 369 U.S. 186 (1962)...................ccccccccsseeeeees

16

19

21

23

19

Il

Page

Cases—Continued

Bowsher v. Synar, 478 U.S. 714 (1986) ..0.....cccccccceeeeeeeee 7

Buckley v. Valeo, 424 U.S. 1 (1976) .........ccccccccccccceeeeeees 7

EPA v. Brown, 431 U.S. 99 (1977) ...........:ccccccscccsseseseseees 7

Goldwater v. Carter, 444 U.S. 996 (1979).....0..0.0.00cccc. 22

Honig v. Doe, 108 S.Ct. 592 (1988)..............:cccccccessssseceeee. 14

INS v. Chadha, 462 U.S. 919 (1983). ..........0ccccccceeeeeeeeee. 7

Morrison v. Olson, 108 S.Ct. 2597 (1988)... ce eee. 7

Murphy v. Hunt, 455 U.S. 478 (1982).........:.cccccccecceeseeeeees 14

National Federation of Federal Employees v. United

States, 695 F. Supp. 1196 (D.D.C. 1988), appeals

docketed, Nos. 88-5402 & 88-5404 (D.C. Cir.)............. 14

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498

RRA ie: ETRE APR rene one eat SRO OE 15

United Public Workers v. Mitchell, 330 U.S. 75 (1947). 21

United States v. AT&T, 567 F.2d 121 (D.C. Cir. 1977).. 6

United States v. Munsingwear, 340 U.S. 36 (1950)........ 1, 15

Statutes:

Foreign Relations Authorization Act of 1972, Pub. L.

No. 92-352, § 502, 86 Stat. 489 .u0...........cccecccscccccscesseees 6

Department of State Appropriations Authorization

Act of 1973, Pub. L. No. 93-126, § 17, 87 Stat. 451... 7

Continuing Appropriations Resolution, 1988, Pub. L.

No. 100-202, 101 Stat. 1329 (1987)............cccceeeeeeeeees 2

Treasury, Postal Service and General Government

Appropriations Act, 1988, Pub. L. No. 100-202, 101

Ek ___ RRS N area Nun ere aint Ors SIS OT em a

Treasury, Postal Service and General Government

Appropriations Act, 1989, Pub. L. No. 100-440, 102

EERE SEE SSSI EAS I ee red eR 2

National Defense Authorization Act, Fiscal Year

1989, Pub. L. No. 100-456, 102 Stat. 1918 (1988)....... 22

Re cee ee 6

Es ss

Congressional and Miscellaneous:

Intelligence Oversight Act of 1988, S. 1721, 100th

BE EE 22

S. Rep. No. 754, 92d Cong., 2d Sess. (1972) ........0.00000000. 6-7

S. Rep. No. 276, 100th Cong., 2d Sess. (1988) 2.00.00... 23

H.R. Rep. No. 705, Pts. 1 & 2, 100th Cong., 2nd Sess.

Pe eiaaabirsistosdsadlaissiasieibgiiratiedaanssbaddiipprandiemiadantitesiaitana dats 22

Ill

Page

Congressional and Miscellaneous—Continued

H.R. Conf. Rep. No. 498, 100th Cong., lst Sess. (1987). 12

Report of the Congressional Committees Investigating

the Iran-Contra Affair, S. Rep. No. 216 and H.R.

Rep. No. 433, 100th Cong., Ist Sess. (1987)................. 6, 22

Se I shccectttccisenietenerinesienisecsvnscovesoncins 7

134 Cong. Rec. $2249 (daily ed. Mar. 15, 1988).............. 22

135 Cong. Rec. S23 (daily ed. Jan. 3, 1989)... 22

135 Cong. Rec. S278-83 (daily ed. Jan. 25, 1989)........... 22

Prepublication Review and Secrecy Agreements: Hear-

ings Before the Subcomm. on Oversight of the

House Permanent Select Comm. on Intelligence,

ee ss Be A, CE ceeeseinsnenndsieanccttensitoneinesnenerennnes i)

Presidential Directive on the Use of Polygraphs and

Prepublication Review: Hearings Before the Sub-

comm. on Civil and Constitutional Rights of the

House Comm. on the Judiciary, 98th Cong., lst &

NN I cache ccieadaiss istnesipsiidinhiaicel cnaiendahscacediaitdibiioitabiion 8, 9, 16

National Security Decision Directive 84: Hearing

Before the Senate Comm. on Governmental Affairs,

an Be I Ca itasconcnctnnidecnommmneaimnnenssneionen 9

Classified Information Nondisclosure Agreements:

Hearing Before the Subcomm. on Human Resources

of the House Comm. on Post Office and Civil Serv-

ice, 100th Cong., Ist Sess. (1987) .............cccccceeeeeeees 9-10, 11

Congress and the Administration's Secrecy Pledges:

Hearing Before a Subcomm. of the House Comm.

on Government Operations, 100th Cong., 2d Sess.

i iasicictitasicasianriarhsainei hah sualiascesinsisimnedaideieiiciiagencdanssaneiniins 18

Oversight Legislation: Hearings on S. 1721 and S.

1818 Before the Senate Select Comm. on Intelli-

gence, 100th Cong., 2d Sess. (1988) ...........ccccceceeeeeees 22

Executive Order 12356, 47 Fed. Reg. 14,876 (1982)....... 10

24 Weekly Comp. Pres. Doc. 1189 (Sept. 26, 1988)........ 15

24 Weekly Comp. Pres. Doc. 1377 (Oct. 31, 1988).......... 22

52 Fed. Reg. 28,802 (Aug. 3, 1987) .............:cccccscesseeseeeseess 12

52 Fed. Reg. 48,367 (Dec. 21, 1987)............:ccccescceseeseeeseees 13

53 Fed. Reg. 38,278 (Sept. 29, 1988).................... 14, 15, 17, 18

a ee necccicnnsttrcinetbinsnniiioneicisasinnee 12, 13, 14, 17, 18

fC

In the Supreme Court of the United States

OcTOBER TERM, 1988

No. 87-2127

AMERICAN FOREIGN SERVICE ASSOCIATION, ET AL.,

APPELLANTS

VU.

STEVEN GARFINKEL, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

BRIEF OF THE UNITED STATES SENATE AS AMICUS CURIAE

INTEREST OF THE UNITED STATES SENATE

If the merits were to be reached, this appeal would

present a fundamental issue about Congress’s authority

to legislate a necessary and proper balance between the

benefits of secrecy and the needs of an informed public

and Congress in protecting the nation’s security. Because

the district court failed to give due weight to Congress's

constitutional responsibilities, the United States Senate

has a strong interest in reversal or vacation of the judg-

ment invalidating section 630 of the Treasury, Postai

Service and General Government Appropriations Act,

1988, Pub. L. No. 100-202, 101 Stat. 1329-391, 1329-432.

As no case or controversy presently requires this Court to

adjudicate the merits of this case, the interes‘s of the po-

litical branches would be served best by the vacating of

the judgment below so that it will not “spawn[ | any legal

consequences,’ United States v. Munsingwear, 340 US.

36, 41 (1950), governing the balance between them.

(1)

2

STATUTORY PROVISIONS INVOLVED

Section 630 of the Treasury, Postal Service and General

Government Appropriations Act, 1988, 101 Stat. 1329-391,

1329-432, was enacted as part of the Continuing Appro-

priations Resolution, 1988, Pub. L. No. 100-202, 101 Stat.

1329 (1987). Section 619 of the Treasury, Postal Service

and General Government Appropriations Act, 1989, Pub.

L. No. 100-440, 102 Stat. 1721, 1756 (1988), extends section

630 through Fiscal Year 1989. We will refer to them col-

lectively as “section 630,” which provides:

Sec. 630. No funds appropriated in this or any other

Act for fiscal year 1988 may be used to implement or en-

force the agreements in Standard Forms 189 and 4193 of

the Government or any other nondisclosure policy, form

or agreement if such policy, form or agreement:

(1) concerns information other than that specifical-

ly marked as classified; or, unmarked but known by

the employee to be classified; or, unclassified but

known by the employee to be in the process of a clas-

sification determination;

(2) contains the term ‘classifiable’;

(3) directly or indirectly obstructs, by requirement

of prior written authorization, limitation of author-

ized disclosure, or otherwise, the right of any individ-

ual to petition or communicate with Members of Con-

gress in a secure manner as provided by the rules

and procedures of the Congress;

(4) interferes with the right of the Congress to

obtain executive branch information in a secure

manner as provided by the rules and procedures of

the Congress;

(5) imposes any obligations or invokes any remedies

inconsistent with statutory law: Provided, That noth-

ing in this section shall affect the enforcement of

those aspects of such nondisclosure policy, form or

agreement that do not fall within subsections (1)-(5)

of this section.

3

SUMMARY OF ARGUMENT

The district court grounded its invalidation of section

630 on an insupportably limited vi w of the national secu-

rity powers that the Congress shares with the President.

In performing its constitutional responsibilities the Con-

gress has a great need for information from officials of

the executive branch. As the judgment of the district

court threatens to undermine the balance between the

legislative and executive branches, we support appellants’

constitutional arguments if it is necessary to reach the

merits of this controversy.

The merits need not be reached, however. Disputes over

the information that both political branches need to per-

form their constitutional responsibilities have been left

historically to accommodation between the President and

the Congress. Through the efforts of federal employees,

their unions, the Congress, executive officials, and the

district court in the companion cases, no present case or

controversy necessitates a judicial determination of the

fundamental issues that are otherwise presented.

1. The primary purpose of section 630 was to eliminate

the uncertainty from nondisclosure agreements that had

been caused principally by the vague term “classifiable.”

The President issued National Security Decision Directive

84 to require that every person with access to classified

information sign a nondisclosure agreement. Although

the President’s directive applied only to disclosure of

“classified” information, the implementing forms also

prohibited the disclosure of ‘classifiable’ information.

Executive braiich personnel objected to the vagueness of

the term “classifiable,” and unions of federal employees

commenced actions to challenge its use. The Congress

also focused on the term “classifiable” when it enacted

section 630; subsection 2 of the measure specifically pro-

hibited its use. The Congress was concerned that the

term’s vagueness would reduce the flow to the public and

to the Congress of valuable nonclassified information.

4

2. The issuance of new agreements which do not con-

tain the term “classifiable” has mooted the controversy

over that term. In March, 1988, the Director of Central

Intelligence issued Form 4355 to replace Form 4193 con-

cerning the disclosure of information about, or derived

from, sources and methods of intelligence. Then, in Sep-

tember, 1988, after the entry of the judgment below but

before probable jurisdiction was noted in this Court, the

Director of the Information Security Oversight Office

issued Form 312. Neither form contains the prohibited

term. The major problem which the Congress sought to

address in enacting section 630 has been resolved. _

3(a). Pursuant to subsection 1 of section 630, federal

funds may be used to implement only nondisclosure

agreements that concern information that is marked as

classified or, if unmarked, is “known” by the employee

who has signed the agreement to be classified or in the

process of classification. The dispute about this require-

ment is not ripe. Appellants correctly observe that Con-

gress enacted this requirement to make certain that fed-

eral agencies would not reintroduce the uncertainty that

had been created by the vague term “classifiable.” The

new forms that have been issued without the term “clas-

sifiable” place a duty on employees to “consult’’ or “con-

firm’’ with other officials when they are uncertain about

the classification status of information. On their face

these modest and specific duties do not engender the

great uncertainty that had been caused by the term “clas-

sifiable.” A ripe controversy might arise only if the duty

to “consult” or “confirm” is implemented in a way that

re-creates the uncertainty in the scope of a federal em-

ployee’s obligations that section 630 was intended to

avoid.

3(b). A question under the remaining portion of section

630 arises, if at all, only if subsection 3 is read to bar the

executive branch from requiring its employees to obtain

authorization from superior officials prior to communicat-

ing classified information to the Congress. No ripe contro-

5

versy about the meaning or constitutionality of subsec-

tion 3 is presented on this appeal, however. No restriction

on disclosures to the Congress appears on the face of the

confidentiality agreements. Neither the complaints nor

the affidavits of federal employees describe an instance in

which, on the basis of a nondisclosure agreement, any

federal employee has sought or been denied permission to

provide classified information to the Congress. Further-

more, vacating for lack of ripeness would be consistent

with the district court’s dismissal for lack of ripeness of a

similar claim that the nondisclosure agreements violate

the Lloyd - La Follette Act, 5 U.S.C. § 7211, which protects

the right of federal employees to petition the Congress.

4. Vacating the judgment will also serve to avoid in-

volving the Court in the determination of unresolved po-

litical matters between the legislative and executive

branches. The matters involved range from proposals for

new legislation on whistleblowers to proposals for new

legislation on executive reporting to the Congress about

anticipated covert intelligence operations. The resolution

of these sensitive matters is best left to the continuing

process of communication and accommodation between

the representative branches.

ARGUMENT

THE JUDGMENT OF THE DISTRICT COURT SHOULD BE VACATED BECAUSE

THERE IS NO PRESENT CASE OR CONTROVERSY

The district court’s judgment that section 630 is uncon-

stitutional is premised on a parsimonious view of the

powers and responsibilities of the Congress. Against ‘the

constitutional and traditional role of the Executive in as-

suring the nation’s security and gathering and protecting

the information essential to that security,” J.S. 25a, the

district court perceived only a limited congressional func-

tion. In its view, “[hljistorically, the role of Congress in

this arena has been to facilitate secrecy with appropriate

criminal and civil sanctions.” Jd. at 26a. Not surprisingly,

the Congress begins with a different premise, that ‘the

conduct of foreign policy [i]s a shared power between Con-

6

”

gress and the President.’’ ! The Constitution assigns sig-

nificant national security powers to the President, but it

also “confers upon Congress other powers equally insepa-

rable from the national security, such as the powers to

declare war, raise and support armed forces and, in the

case of the Senate, consent to treaties and the appoint-

ment of ambssadors.”’ 2

If the district court’s judgment were to stand, the deli-

cate balance which now exists between the legislative and

executive branches in carrying out their respective consti-

tutional responsibilities concerning national defense and

foreign policy would be seriously undermined. In exercis-

ing its responsibilities under the Constitution, the Con-

gress has a great need for candid communications from

executive branch officials and employees. It has mandat-

ed that ‘“{t]he right of employees, individually or collec-

tively, to petition Congress or a Member of Congress, or

to furnish information to either House of Congress, or to

a committee or Member thereof, may not be interfered

with or denied.” * It has protected the right of each exec-

utive branch employee whose duties relate to foreign

policy, such as members of the appellant association, to

“express his views and opinions, and make recommenda-

tions he considers appropriate, if the request of the com-

mittee [of Congress] or member of the committee relates

to a subject which is within the jurisdiction of that com-

mittee.” * Consistent with these interests, we join the ap-

pellants’ defense of the constitutionality of section 630.

' Report of the Congressional Committees Investigating the Iran-

Contra Affair, S. Rep. No. 216 and H.R. Rep. No. 433, 100th Cong., Ist

Sess. 388 (1987).

2 United States v. AT&T, 567 F.2d 121, 128 (D.C. Cir. 1977).

35 U.S.C. § 7211 (1982).

+2 U.S.C. § 194a (1982). Protection for the candid expression of views

by foreign service officers derives from the Foreign Relations Authori-

zation Act of 1972, Pub. L. No. 92-352, § 502, 86 Stat. 489, 496. The

Senate Committee on Foreign Relations explained that “{aJll too often

Executive Branch witnesses seem to be afraid to respond candidly to

Continued

7

The mutual interests of the political branches in a bal-

anced and effective government will not be advanced,

however, by an adjudication of the merits of this case.

Unlike other controversies in which the Court has decid-

ed disputes between the Congress and the President

about the structure of constitutional government,® this

appeal is not about the bold outlines of the separation of

powers. Instead, this case addresses the shared interests

of the executive and legislative branches in the informa-

tion which each must have to perform its constitutional

tasks. Over the long haul of our constitutional history the

Congress and the President have resolved together ques-

tions about the sharing of information. Although they

often disagree about access to facts and opinions, the

President and the Congress recognize that they have a

mutual interest in practical efforts to achieve accommo-

dation.

Fortunately, a decision on the merits is avoidable as

“the litigation has undergone a great deal of shrinkage

since the decision[ }] below. . . .”’ EPA v. Brown, 431 U.S.

99, 103 (1977) (per curiam). As a result of the efforts of all

the participants in this controversy—the individual feder-

questions put to them for fear of departing in any way from official

policy. This provision will give them statutory encouragement to speak

frankly to the Committee.” S. Rep. No. 754, 92d Cong., 2d Sess. 97

(1972). In 1973 the Congress expanded this protection from officers

confirmed by the Senate to all employees of foreign affairs agencies.

Department of State Appropriations Authorization Act of 1973, Pub. L.

No. 93-126, § 17, 87 Stat. 451, 455; see 119 Cong. Rec. 19231 (1973) (re-

marks of Chairman Fulbright stating that measure is ‘‘another step to

try to reestablish a proper relationship between Congress and the

President on foreign policy matters’).

° E.g., Buckley v. Valeo, 424 U.S. 1 (1976) (officers of the Congress

may not appoint officers of the United States); JNS v. Chadha, 462

U.S. 919 (1983) (one House of Congress may not override the exercise

of statutory authority by an officer of the United States); Bowsher v.

Synar, 478 U.S. 714 (1986) (Congress may not delegate executive power

to an officer over whom it has reserved the power of removal); Morri-

son v. Olson, 108 S.Ct. 2597 (1988) (Congress may assign to a court the

power to appoint an independent prosecutor).

8

al employees who objected to vague terminology in earli-

er secrecy agreements, the unions that helped these em-

ployees present their grievances, the members of Con-

gress who negotiated with the executive branch and spon-

sored hearings and legislation (on our side, Senators

Grassley, Pryor, and Proxmire), the district court in the

companion cases, and the executive branch officials who

responded to the legislation and to the recent orders of

the district court—the standard secrecy agreements have

been amended to resolve the basic objection that had

been lodged against them. The route to compliance may

not have been as direct as possible, but Congress’s pri-

mary objective in enacting section 630 has been attained.

The harm that the district court’s judgment might cause

to the constitutional balance between the political

branches may be avoided by vacating that judgment on

the ground that the only ripe part of this controversy is

now moot.

1. Congress Enacted Section 630 to Respond to the Execu-

tive'’s Use in Nondisclosure Agreements of the Term

“Classifiable”’

The President’s goal in issuing National Security Deci-

sion Directive (‘“‘NSDD”’) 84 was to restrain the disclosure

of “classified”’ information. J.A. 11. The directive was

based upon an interdepartmental report about “unau-

thorized disclosures of classified information .. . [that]

primarily occur through media ‘leaks’ by anonymous gov-

ernment employees, or in publications and statements by

former employees.”’ © On announcing the issuance of the

NSDD in March, 1983, the Department of Justice stressed

that ‘“{t]he directive deals only with disclosures of classi-

6 Presidential Directive on the Use of Polygraphs and Prepublication

Review: Hearings Before the Subcomm. on Civil and Constitutional

Kights of the House Comm. on the Judiciary, 98th Cong., lst & 2d Sess.

166 (i984) (1983-84 House Judiciary Comm. Hearings’) (text of

report).

9

fied information.” 7 During hearings held later in 1983 on

other provisions of the NSDD, administration witnesses

underscored their intent “not to interfere with the free

flow of unclassified information to the public,” while re-

stating their view that there is “no... right of public

access to classified information, and that is what the di-

rective is designed to deal with.” ®

Although the President’s directive addressed the disclo-

sure of “classified” information only, Form 189, which

was promulgated in August, 1983, to implement NSDD

84, and Form 4193, which had been prescribed earlier by

the Director of Central Intelligence for sensitive compart-

mented information (“SCI’’), also barred the disclosure of

“classifiable” information.® A _ sustained controversy

about the term “classifiable” did not occur, however,

until a number of executive branch employees objected to

the confidentiality forms when they were presented to

them for signature several years later.!°

7 National Security Decision Directive 84: Hearing Before the Senate

Comm. on Governmental Affairs, 98th Cong., Ist Sess. 88 (1983) (7.982

Senate Hearing’) (emphasis in original).

* 1983-84 House Judiciary Comm. Hearings, supra note 6, at 77 (tes-

timony of Dep. Ass’t Att’y Gen. Richard K. Willard). Among the mat-

ters not covered by the report that preceded the issuance of NSDD 8&4

were “leaks of unclassified information.” Jd. at 166; see also id. at 170.

* J.A. 15 (Form 189, § 1); J.A. 19 (Form 4139, § 1). See Prepublication

Review and Secrecy Agreements: Hearings Before the Subcomm. on

Oversight of the House Permanent Select Comm. on Intelligence, 96th

Cong., 2d Sess. 12 (1980) (CIA policy against disclosure of information

“which is classifiable pursuant to law or Executive order but which,

because of operational circumstances or oversight, is not formally clas-

sified by designation and marking’’).

10 While several senators promptly questioned the use of the word

“classifiable,” 1982 Senate Hearing, supra note 7, at 13-14, 20, 39-40

(Senator Eagleton); id. at 16-17 (Senator Levin), the Congress focused

initially on issues presented by the NSDD’s provisions on prepublica-

tion review and the use of polygraphs in leak investigations. Many fed-

eral employees were not asked to sign an agreement until several

years after forms were promulgated. Classified Information Nondisclo-

sure Agreements: Hearing Before the Subcomm. on Human Resources of

Continued

10

The declaration below of an Air Force atmospheric

physicist gives this case, with the large issues that it has

engendered, a specific mooring. H. Stuart Muench was

presented with Form 189 in September, 1986, and was di-

rected to return it in four days.'! In order to limit his

agreement to “information that is classified under the

standards of Executive Order 12356,’ Muench struck

“classifiable” from the form.'? He was concerned, be-

cause Executive Order 12356, § 1.3(a)(6), allows classifica-

tion of “scientific, technological, or economic matters re-

lating to the national security,” 47 Fed. Reg. 14,876

(1982), that the term “classifiable’’ would limit what he

could say in “every paper, letter, talk, discussion” after

leaving government.'* After the Air Force initiated pro-

cedures to revoke his security clearance, Muench signed

an unredacted Form 189 but appended a memorandum '*

indicating that he understood by reference to a Depart-

ment of Defense pamphlet that “ ‘classifiable’ refers to in-

formation that meets the criteria for classification under

Executive Order 12356, but which has not yet been prop-

erly marked because of time limitations, oversight or

error. '5

the House Comm. on Post Office and Civil Service, 100th Cong., lst

Sess. 68 (1987) (1987 House Hearing’) (Information Security Oversight

Office (“ISOO"’) fact sheet on status of Form 189) (1987); id. at 87-88

(Air Force first implemented procedures for the use of Form 189 in re-

sponse to DOD directives in 1985).

!! Opposition to Defendants’ Motion to Dismiss, Exh. 3, Declaration

of H Stuart Muench at 1 (filed Nov. 20, 1987), National Federation of

Federal Employees v. United States, C.A. No. 87-2284 (D.D.C.).

'2 Td. at 2 & Att. 2.

13 Jd., Att. 2A.

‘4 Jd. at 4 & Att. 11.

15 Opposition to Defendants’ Motion to Dismiss, Exh. 4, DOD5200.1-

PH-1, at 29. See also Supplemental Statement of Opposition to Defend-

ants’ Motion to Dismiss, Declaration of Louis C. Brase at 5 (‘ 2) (filed

Jan. 12, 1988), American Federation of Government Employees, AFL-

CIO v. Garfinkel, C.A. No. 87-2284 (D.D.C.) (objecting that term “clas-

sifiable’’ in secrecy agreements ‘must necessarily inhibit my free com-

munication of unclassified information to Congress and the public’)

‘emphasis in original)

11

The vagueness of the term “classifiable” became the

central issue both in the district court and in the Con-

gress. The National Federation of Federal Employees

sought an injunction against any nondisclosure agree-

ment “which prohibits the disclosure of ‘classifiable’ in-

formation,” complaining that Form 189

requires employees to speculate as to what should

have been or could have been designated ‘‘classi-

fied.”” Speculation is not an appropriate condition

of continuing employment or security clearance

coverage. . . . The term “classifiable” is vague and

overbroad. Out of fear of breaching the terms of

SF-189, employees will not disclose information

which is, in fact, legally disclosable. !®

Senator Grassley, objecting to “vague, ambiguous and, in

places, very unintelligible” language throughout Form

189, stated that ‘[t]he classic example of this problem is

the term ‘classifiable.’ ”’ !7

Members feared that the vagueness of the term “classi-

fiable” threatened to “ ‘chill[ ] or discourage[ ] the disclo-

sure of any information which evidences waste, fraud,

corruption or illegality in government. . . in contrast to

and in derogation of the intended results of the whistle-

blowing statute.’’’ !® The conferees emphasized that the

administration’s secrecy agreements oblige federal em-

ployees

to safeguard not only information which is proper-

ly classified pursuant to executive order, but any

‘6 Complaint at 6, 4, 6 (filed Aug. 17, 1987), National Federation of

Federal Employees v. United States, C.A. No. 87-2284 (D.D.C.); the

union filed two amended complaints.

'7 1987 House Hearing, supra note 10, at 9.

‘8 Jd. (quoting American Law Division, Congressional Research

Service, Memorandum on Effect of Secrecy Agreements on Whistle-

blowing Protections, July 28, 1987). That memorandum (reprinted in

id. at 157-64) argued that “[tjhe restrictions in the secrecy agreement

on the disclosure of information which is not specifically classified

under the Executive Order, but merely ‘classifiable,’ raise questions as

to the consistency of the agreement with the whistleblowing protec-

tions of federal law. . . .” Jd. at 160.

12

information which may be considered to be ‘‘classi-

fiable.”’ This overbroad and ambiguous language re-

sults in a chilling effect on the first amendment

rights of government employees, including their

ability to communicate directly with members of

Congress. !9

The conferees understood that the primary purpose of

section 630 was “‘to address the dubious concept of ‘classi-

fiable’ information.” Jd.

2. Elimination of “Classifiable’’ From the Form Agree-

ments Moots the Controversy About That Term

During a fourteen-month period beginning in August,

1987, executive officials, litigants, the Congress, and the

district court all took steps to remedy the concerns of fed-

eral employees about the use of the term “‘classifiable.”’

These efforts bore final fruit following the judgment of

the district court when the Information Security Over-

sight Office issued a new form that omitted the disputed

term.

Just prior to the plaintiffs’ filing of the first of the ac-

tions consolidated below, administration officials sought

to address the questions of federal employees about the

term “classifiable” by explaining in the Federal Register

that the term “classifiable” in Form 189 “refers to infor-

mation that meets all the requirements for classification

. . . but which,-as a result of negligence, time constraints,

error, lack of opportunity or oversight, has not been

marked as classified information.” 2° The forms them-

selves were not revised, however, and the published clari-

fication failed to meet the objection that the term “‘classi-

fiable’” would deter officials from communicating nonclas-

sified information to the Congress and to the public out of

‘9 H.R. Conf. Rep. No. 498, 100th Cong., lst Sess. 1179 (1987). The

importance of the conference report in understanding the intent of the

two Houses is enhanced by the absence of an earlier report by a com-

mittee in either House.

2052 Fed. Reg. 28,802 (Aug. 3, 1987) (to have been codified at 32

C.F.R. § 2003.20(h)).

13

fear that other officials would later decide that the mate-

rial should have been classified.?!

On December 21, 1987, the Director of the Information

Security Oversight Office again revised the rules govern-

ing Form 189 in an effort to answer the concern about

after-the-fact classification. The new regulation limited

the prohibition in Form 189 against disclosure of “‘classifi-

able” information to ‘(a) [uJnmarked classified -informa-

tion, including oral communications; and (b) ynclussified

information that meets the standards for classification

and is in the process of a classification determination.” 22

In promulgating this change, administration officials took

the first step toward resolving the comtroversy about the

reach of the secrecy agreements, but they failed, as they

had failed to do in August, 1987, to take the other neces-

sary step of issuing revised forms that contained the lim-

iting definition. The following day, December 22, 1987,

Congress enacted section 630 to prohibit the enforcement

of agreements which include in their text the word ‘“‘clas-

sifiable.”’

The revision of the government’s secrecy agreements

occurred in two steps in 1988. First, prior to the district

court’s judgment invalidating section 630, the Director of

Central Intelligence, on March 18, 1988, issued Form 4355

to replace Form 4193. The new form omits the term “‘clas-

sifiable.” Instead, it defines the information covered by

the agreement to be information that “involves or derives

from intelligence sources or methods and is classified or

is in the process of a classification under the standards of

Executive Order 12356 or other Executive order or stat-

21 One union argued to the district court that “any definition out-

side the scope of the form itself could be changed by administrative

fiat. It is plaintiff's position that the term ‘classifiable’ cannot be made

legally sound by attempts to define it as something other than what it

is on its face.’’ Opposition to Defendants’ Motion to Dismiss at 5 (filed

Nov. 20, 1987), National Federation of Federal Employees v. United

States, C.A. No. 87-2284 (D.D.C.).

2252 Fed. Reg. 48,367 (Dec. 21, 1987) (to have been codified at 32

C.F.R. § 2003.20(h)) (emphasis in original).

14

ute.”’ J.A. 54, J 1. Then, following the July 28, 1988 ruling

of the district court in the companion cases that had re-

mained below,?* the Director of the Information Security

Oversight Office issued Form 312 to replace Form -189. As

with the new SCI agreement, Form 312 omits the term

“classifiable” and applies only to information that is clas-

sified or, if unclassified, “meets the standards for classifi-

cation and is in the process of a classification determina-

tion.” 24 Appropriated funds are no longer being used “‘to

implement or enforce” any nondisclosure agreement that

“contains the term ‘classifiable.’’’ The major problem

which Congress sought to solve in enacting section 630

has been remedied.?5

This Court adheres to the principle that ‘“{uJnder Arti-

cle III ofthe Constitution, [it] may only adjudicate actual,

ongoing controversies.” Honig v. Doe, 108 S.Ct. 592, 601

(1988). Accordingly, “[t]he present rule in federal cases is

that an actual controversy must exist at all stages of ap-

pellate review, not merely at the time the complaint is

filed.”’ Jd. at 607 (Rehnquist, C.J., concurring).2® Because

there is no “ ‘reasonable expectation that the same com-

plaining party would be subjected to the same action

again,” *7 the exception to the mootness rule for cases

22 Motion to Affirm at 4a-24a, reprinting National Federation of

Federal Employees v. United States, 695 F. Supp. 1196 (D.D.C. 1988),

appeals docketed, Nos. 88-5402 & 88-5404 (D.C. Cir.).

24 J.A. 60; 53 Fed. Reg. 38,279 (Sept. 29, 1988) (to be codified at 32

C.F.R. § 2003.20th)).

?5 Current executive branch employees who had signed Form 189 or

Form 4193 have been notified of the narrowing of the definition of

“classifiable,” Brief of Appellants at 20, and of their opportunity to re-

place their old agreements with new ones which omit the disputed

term. 53 Fed. Reg. 38,279 (Sept. 29, 1988) (to be codified at 32 C.F.R.

§ 2003.20(b)).

26 But see id. at 608 (Rehnquist, C.J., concurring) (proposing excep-

tion to mootness rule when supervening event takes place after proba-

ble jurisdiction is noted or certiorari is granted). The issuance of Form

312 without the term ‘classifiable’ occurred prior to the noting of

probable jurisdiction.

27 Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam) (quoting

Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam).

15

that are “capable of repetition, yet evading review,”

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515

(1911), is unavailable.

The President’s statement that section 619 (section

630’s successor) ‘‘will be considered of no force or effect

unless and until the ruling of the District Court is re-

versed by the Supreme Court” 2° furnishes no occasion to

continue to litigate about the deleted term “classifiable.”

It is unlikely that the President intended to draw a dis-

tinction between the vacating and reversing of the dis-

trict court’s judgment; either result would leave intact

the statute enacted by the Congress. Moreover, the notice

published by the Director of ISOO explained that Form

312 had been issued without the term “classifiable” be-

cause it was “a preferred means” to deal with the ambi-

guities that had been perceived in the prior form. 53 Fed.

Reg. 38,278 (Sept. 29, 1988). There is no basis for believ-

ing, and no suggestion has been made, that either the Di-

rector of ISOO or the Director of Central Intelligence

would now discard that “preferred means” and revert to

the ambiguities which had led to litigation and legisla-

tion. The judgment of the district court, insofar as it rests

on subsection 2 of section 630, should be vacated as moot

pursuant to United States v. Munsingwear, 340 U.S. 36

(1950).

3. No Dispute About Any Other Part of Section 630 Is Ripe

for Review

Although disputes about the application of the remain-

ing parts of section 630 may occur, no ripe controversy

about subsections 1 and 3-5 exists to warrant a disposi-

tion of the merits of this appeal now that the principal

dispute under subsection 2 over the term “classifiable”

has been mooted.

28 24 Weekly Comp. Pres. Doc. 1189 (Sept. 26, 1988); see Brief of Ap-

pellants at 20.

16

a. Potential Disagreements Over the Knowledge Re-

quirement in Subsection 1 Do Not Present a

Ripe Controversy

Under subsection 1 of section 630, no funds may be

used to implement or to enforce nondisclosure agree-

ments unless the agreements apply to information (apart

from marked classified information) that is “unmarked

but known by the employee to be classified; or, unclassi-

fied but known by the employee to be in the process of a

classification determination.” 2° While the new nondisclo-

sure forms are not limited expressly to unmarked infor-

mation that is “known” by an employee to be classified

or in the process of classification, the forms describe a

consistent duty of employees to learn about the status of

information. If during the remainder of this fiscal year

this duty is enforced in a way which engenders the uncer-

tainty that section 630 was designed to eliminate, a ripe

controversy might be presented about subsection 1. Until

then an adjudication about the subsection’s meaning and

constitutionality would be premature.

The replacement forms that were issued after enact-

ment of section 630 impose a duty on federal personnel to

inquire when they are uncertain about the classification

status of information. Form 4355 requires a signer to

agree not to disclose to an unauthorized person informa-

tion in the process of classification “that I know to be

2° As a preliminary matter, the congruity between the President's

directive and the words utilized by Congress in subsection | makes it

difficult to discern in them the basis for a constitutional conflict. The

report on which the President based NSDD 84 eschewed any interest

in addressing the ‘“‘compromise of classified information through negli-

gence.” 1983-84 House Judiciary Comm. Hearings, supra note 6, at 166;

see also id. at 170-71. The President directed that persons who have

“knowingly” made unauthorized disclosures be denied future access to

classified information. J.A. 13 (§ 2(e)). The language employed by the

Congress in subsection 1—that secrecy agreements may govern only

marked classified information or unmarked information that is

“known” by an employee to be classified or in the process of a classifi-

cation determination—follows naturally from the President's order es-

tablishing the secrecy agreement program.

17

SCI.” J.A. 55 (§3). An employee who has signed the

agreement has the responsibility to “consult” with de-

partmental authorities “to ensure that I know whether

information or material within my knowledge or control

that I have reason to believe might be SCI, or related or

derived from SCI, is considered by such Department or

Agency to be SCI.” Jd. Form 312 imposes the similar duty

on each employee who signs it “that if I am uncertain

about the classification status of information, I am re-

quired to confirm from an authorized official that the in-

formation is unclassified before I may disclose it’’ to un-

authorized persons. J.A. 67 (§ 3).

Based on their understanding that ‘“[t]hrough the

actual knowledge requirement, Congress sought to ensure

that agencies would not resurrect the uncertainty sur-

rounding the term ‘classifiable,’ °° appellants are con-

cerned about an ISOO guideline that a person “may” be

liable for disclosing classified information only if he or

she knows or “reasonably should know” that the informa-

tion is classified or in the process of classification deter-

mination.*! But any immediate problem of uncertainty

about the phrase “reasonably should know” has been

ameliorated by describing to employees the specific meas-

ures which they should take: they should “consult” (Form

4355) or “confirm” (Form 312) when they are in doubt

about the classification status of information.

Neither the purpose of section 630 nor the text of sub-

section 1 suggests that Congress intended to deny to the

executive the power to require employees to take reasona-

ble steps to learn whether information is classified or is

undergoing a classification review, as long as they are not

required to speculate about the actions of government

3° Brief of Appellants at 36. We agree with appellants that subsec-

tion 1 was passed in aid of subsection 2 and should be interpreted and

applied in conjunction with that subsection’s ban on the term “‘classifi-

able.” ‘

34 Td. at 19-20, citing 53 Fed. Reg. 38,279 (Sept. 29, 1988) (to be codi-

fied at 32 C.F.R. § 2003.20(hX3)).

18

classifiers.*2 The forms that have been issued since the

enactment of section 630 seek both to eliminate uncer-

tainty and to discourage willful ignorance by describing

the duty of employees to ascertain the status of informa-

tion with which they have been entrusted. Any interpre-

tative problem that may be posed by a duty to “consult”’

or “confirm” is unlike the one that persuaded the Con-

gress to prohibit the term “classifiable.’”” The Congress’s

principal objection to the term “classifiable’’ was that it

required employees to predict whether government offi-

cials would decide that previously unclassified material

should have been classified. [In contrast, a duty to “‘con-

firm” or “consult’’ obliges employees only to ascertain the

present classification status of information; speculation is

not required.

Neither Form 312 nor Form 4355 presents on its face

an issue about compliance with subsection 1. Although a

ripe controversy might be presented if, in the implemen-

tation of these forms, the uncertainty that section 630

sought to eliminate reemerges, no concrete dispute about

32 Indeed, one of the plaintiffs below, the American Federation of

Government Employees, AFL-CIO, has advised this Court that “‘it is

far from clear that § 630 is intended to preclude the Executive from

taking disciplinary action against an employee who unknowingly but

carelessly discloses unmarked information in the process of a classifi-

cation determination.” Brief for the American Federation of Labor

and Congress of Industrial Organizations and the American Federa-

tion of Government Employees, AFL-CIO as Amici Curiae Supporting

Appellants at 25-26.

The concern has been expressed that a duty to “consult’’ or “con-

firm” “will force would-be whistleblowers to have to ask their superi-

ors about classification determinations. This would act to stop the

whistleblower.’ Congress and the Administration's Secrecy Pledges:

Hearing Before a Subcomm. of the House Comm. on Government Oper-

ations, 100th Cong., 2d Sess. 21 (1988) (statement of Rep. Boxer). How-

ever, ISOO’s regulations provide that nondisclosure agreements “do

not supersede the provisions of section 2302, Title 5, United States

Code, which pertain to the protected disclosure of information by Gov-

ernment employees.” 53 Fed. Reg. 38,279 (Sept. 29, 1988) (to be codified

at 32 C.F.R. § 2003.20(g)).

19 a

subsection 1 is unavoidably presented on the record that

is now before the Court.

b. Neither Is the Potential Issue Under Subsection

3, About Prior Authorization for Disclosures to

Congress, Ripe for Review

In ruling that section 630 is unconstitutional, the dis-

trict court mentioned neither subsections 1 nor 2 but held

that “[plarticularly offensive to the need for judicially

manageable standards are subsections (3) through (5) of

section 630.” ** We agree with the Solicitor General that

the principal questions to be decided, if the merits are

reached, are whether subsection 3 precludes the executive

branch from requiring that officers and employees obtain

authorization from their superiors before communicating

classified information to members of Congress, and, if it

does, whether subsection 3 is constitutional. See Motion to

Affirm at 22-28.

There is no need, however, to decide that issue in this

case. First, there is nothing on the face of the agreements

which impels a resolution of these questions. The agree-

ments permit disclosure to persons “authorized’’ to re-

ceive information, J.A. 55 (Form 4355, § 3); J.A. 67 (Form

312, §3), but do not describe who is authorized. The

agreements do not purport to exclude members of Con-

gress from the universe of authorized persons. The ques-

tion whether the approval of superior officials is required

for the submission of classified information to the Con-

gress implicates policies that are extrinsic vo the nondis-

closure agreements and would take this litigation far

from its present field.

Second, both sides to this litigation have acknowledged

the lack of concreteness pertaining to this issue in the

33 J.S. 26a. The district court did not indicate what it meant in this

context by “judicially manageable standards.” Normally, the “lack of

judicially discoverable and manageable standards,” Baker v. Carr, 369

U.S. 186, 217 (1962), would persuade a court to avoid, rather than to

decide as it did here, an important question about the allocation of

constitutional authority between the political branches.

20

record below. Thus the appellants have advised this Court

that “i]t would be particularly inappropriate for the

Court to delimit the parameters of the rights protected by

Section 630 here because this case does not concern a spe-

cific disclosure made by a federal employee to a Member

of Congress.” Brief of Appellants at 47. The Solicitor Gen-

eral has agreed that “the Court does not have before it

any concrete instance in which an employee has sought

but been denied authorization to disclose information to a

Member of Congress or has been disciplined or denied

further access to classified information because he made

such a disclosure without seeking or obtaining prior ap-

proval.” Motion to Affirm at 27.

Appellants argue persuasively that “[rjather than

decide the respective rights of Congress and the Execu-

tive Branch in a vacuur.., the Court should leave resolu-

tion of future disputes to political negotiations between

the branches or to judicial determinations in concrete set-

tings where political accommodation does not fully re-

solve the conflict.’’ Brief of Appellants at 47. The Solicitor

General, with equal persuasiveness, argues that equitable

relief should be withheld because the “profound separa-

tion-of-powers concerns’ that have been raised are being

presented “in an exceedingly abstract and speculative

context.’ Motion to Affirm at 27.

Third, vacating the district court’s judgment about sub-

sections 3 through 5 for lack of ripeness would be consist-

ent with that court’s dismissal of a claim that the confi-

dentiality agreements conflict with the Lloyd - La Follette

Act, 5 U.S.C. §7211. Motion to Affirm at 2la. Section

7211 provides that “(t]he right of employees, individually

or collectively, to petition Congress or a Member of Con-

gress, or to furnish information to either House of Con-

gress, or to a committee or Member thereof, may not be

interfered with or denied.” On dismissing that claim, the

district court held that plaintiffs must allege that they

“have disclosed or intend to disclose some classified or

classifiable information to Congress and have been

21

threatened with enforcement of the nondisclosure agree-

ments. No such allegation appears in the complaint.”

Motion to Affirm at 22a.

The objective of subsection 3 is to protect rights that

are established or recognized under section 7211 “to peti-

tion or communicate with Members of Congress.” Just as

the district court held that a claim under section 7211

should allege a specific impairment of an employee's

right to communicate with the Congress, so a claim under

subsection 3, which was enacted to implement section

7211, should allege actual communications to the Con-

gress and actual threats to enforce nondisclosure agree-

ments. The principle underlying the district court’s dis-

missal of the claim under section 7211 establishes that

the court should have avoided, for a commensurate lack

of ripeness, ruling on the constitutionality of any aspect

of section 630 beyond the now mooted issue under subsec-

tion 2.

Dismissal for lack of ripeness of these facial challenges

to the form agreements is required by the principle that

“(t]he power of courts, and ultimately of this Court, to

pass upon the constitutionality of acts of Congress arises

only when the interests of litigants require the use of this

judicial authority for their protection against actual in-

terference. A hypothetical threat is not enough.” United

Public Workers v. Mitchell, 330 U.S. 75, 89-90 (1947). Par-

ticularly in light of “the political nature of the questions

presented” about the access of the executive and legisla-

tive branches to, and control over, information relating to

national security and foreign policy, “the prior proceed-

ings in the federal courts must be vacated, and the com-

plaint dismissed.’’ Goldwater v. Carter, 444 U.S. 996, 1006

(1979) (Rehnquist, J., concurring).

4. Vacating the Judgment Will Also Serve to Avoid In-

volving the Court in the Resolution of Open Political

Issues Between the Representative Branches

Vacating the judgment below on grounds of mootness

and unripeness not only would be faithful to this Court's

22

general principles of restraint but also would serve, in

this extraordinary context, to avoid involving the Court

in the resolution of significant political matters that are

best left to the processes of continuing communication

and accommodation between the representative branches.

For example, consideration of whistleblower legislation

in the 101st Congress has already commenced as a conse-

quence of President Reagan’s pocket veto of the Whistle-

blower Protection Act of 1988.°* Congress and the new

administration also may grapple with unresolved ques-

tions about requirements for executive reporting to the

Congress of anticipated covert intelligence operations.

Last year the Senate passed a bill to assure more timely

notification to the Congress of covert operations.**

During the Senate hearings on the bill, the administra-

tion stated constitutional objections based on its views of

the exclusive powers of the President concerning national

security.*® In response, the Senate Select Committee on

%424 Weekly Comp. Pres. Doc. 1377 (Oct. 31, 1988); 135 Cong. Rec.

$23 (daily ed. Jan. 3, 1989) (referral to Senate Committee on Govern-

mental Affairs of message from the President transmitting proposed

Whistleblower Protection Act of 1989); id., S278-83 (daily ed. Jan. 25,

1989) (statements on introduction of S. 20, Whistleblower Protection

Act of 1989). That measure concerns civilian whistleblowers. Last year

the Congress enacted, and the President signed, strong military whis-

tleblower protection as part of the National Defense Authorization

Act, Fiscal Year 1989, Pub. L. No. 100-456, § 846, 102 Stat. 1918, 2027

(1988).

%® Intelligence Oversight Act of 1988, S. 1721, 100th Cong., 2d Sess.,

134 Cong. Rec. $2249 (daily ed. March 15, 1988) (passage). The bill im-

plemented a recommendation made by the congressional committees

which investigated tne Iran-Contra affair. S. Rep. No. 100-216 and

H.R. Rep. No. 100-433, at 423. The House Permanent Select Commit-

tee on Intelligence and Committee on Foreign Affairs reported compa-

rable legislation, H.R. Rep. No. 705, Pts. 1 & 2, 100th Cong., 2d Sess.

(1988), but the House did not complete action on the measure.

3° Oversight Legislation: Hearings on S. 1721 and S. 1818 Before the

Senate Select Comm. on Intelligence, 100th Cong., 2d Sess. 81-106, 127-

52, 157-91 (1988) (testimony and materials submitted by Ass’t Att'y

Gen. Charles J. Cooper).

23

Intelligence reported to the Senate its views that the

shared nature of presidential and congressional authority

with respect to national security supports the constitu-

tionality of legislation that requires the provision of infor-

mation to the Congress. S. Rep. No. 276, 100th Cong., 2d

Sess. 19-25 (1988). These are the very considerations that

are offered by both sides in opposition to, or in defense of,

section 630. A judgment by this Court on those issues in

the highly generalized circumstances of this litigation

could have a considerable impact on significant matters

that the Congress and the President should be resolving

directly with each other.

CONCLUSION

The judgment of the district court should be vacated in

part as moot and in part as unripe.

Respectfully submitted,

MICHAEL DAVIDSON,

Senate Legal Counsel,

KEN U. BENJAMIN, Jr.,

MorGAN J. FRANKEL,

Assistant Senate Legal Counsel.

FEBRUARY 1989.

O